Court to Rule If Death Ends Confidentiality Right for Client

By LINDA GREENHOUSE

Published: March 31, 1998

WASHINGTON, March 30—
The Supreme Court agreed today to decide what happens to the attorney-client privilege after the client dies.

At issue are three pages of handwritten notes taken by a lawyer consulted by Vincent W. Foster Jr., the deputy White House counsel, nine days before Mr. Foster committed suicide in July 1993. After the lawyer, James Hamilton, assured Mr. Foster that their conversation was privileged, the two discussed legal issues relating to Mr. Foster's role in the dismissal of seven members of the White House travel office.

More than two years later, at the direction of Kenneth W. Starr, the Whitewater independent counsel, a grand jury issued a subpoena to Mr. Hamilton and to his law firm, seeking notes that would indisputably have been shielded by the attorney-client privilege had Mr. Foster still been alive.

And last August, a panel of the Federal appeals court here ruled that after a client's death, the privilege was no longer automatic in criminal cases. Instead, the panel ruled, it should be evaluated in light of a prosecutor's need for the information and the availability of other less intrusive means of obtaining it.

That 2-to-1 decision by the United States Court of Appeals for the District of Columbia Circuit, the first such ruling by any Federal court, shocked many specialists in legal ethics and produced an outpouring of largely critical commentary. The American Bar Association, the American College of Trial Lawyers and the National Association of Criminal Defense Lawyers were among the organizations urging the Supreme Court to hear Mr. Hamilton's appeal.

By agreeing to hear the case, Swidler & Berlin v. U.S., No. 97-1192, the Court has probably delayed resolution of the travel office aspect of Mr. Starr's nearly 4-year-old investigation for a year or more. The case will be argued this fall and, unless the Justices act with unusual speed, will not be decided before next spring.

In a brief urging the Court to refuse the appeal, Mr. Starr called the notes -- the contents of which have not been publicly described -- ''highly relevant to this office's investigation'' of the travel office affair. Mr. Starr is seeking the notes as part of his investigation to determine whether Presidential aides lied about any role Hillary Rodham Clinton might have had in the dismissal of seven travel office employees.

''There is no dispute that Mr. Foster would have been an important witness in this office's investigation of whether particular individuals made false statements or committed other Federal crimes during investigations of the travel office firings'' on May 19, 1993, the brief said.

In his Supreme Court appeal, Mr. Hamilton said the appeals court's decision ''defeats the fundamental purpose of the privilege, which is to encourage full and frank communication between attorneys and clients and thereby promote observance of law and the administration of justice.'' He said that without the assurance that their conversation was privileged, Mr. Foster ''would not have confided in Mr. Hamilton and the notes at issue would not exist.''

In setting out its balancing test, the appeals court said that while ''the costs of protecting communications after death are high,'' the costs of restricting the privilege after death are rather low, because a client faces no criminal liability after death. ''We should expect the restriction's chilling effect to fall somewhere between modest and nil,'' the opinion said.

The two judges in the majority were Stephen F. Williams and Patricia M. Wald. In a dissenting opinion, Judge David Tatel said it ''defies both common sense and experience'' to assume that people care little about their reputations after death.

In an unrelated case today, the Court set the stage for a resumption of its debate over Federal power, specifically over the dimensions of the authority that Congress can claim under its constitutional power to regulate interstate commerce.

The Justices agreed to hear an appeal from a Californian who was sentenced to 30 years in prison for violating a 1992 Federal law against carjacking. Nathaniel Jones and his co-defendants drove the car they stole for only a mile before crashing it into a wall. Mr. Jones argues that the car was not used or intended for use in interstate commerce and that if the Federal law is properly interpreted to apply to his offense, the law exceeded Congress's authority under the Commerce Clause.

In the three years since the Court used a similar challenge to strike down a law that made it a Federal crime to carry a gun near a school, the carjacking statute has been challenged unsuccessfully in several courts. The United States Court of Appeals for the Ninth Circuit, in San Francisco, upheld the law in this case, Jones v. U.S., No. 97-6203, finding that ''cars are themselves instrumentalities of commerce, which Congress may protect.''